Topic 2 - A. Fixation: Common law copyright and unfixed utterances

1. What does the New York Court of Appeals hold about the applicability of common law copyright to unfixed utterances?

2. Does common law copyright protect what is said in the typical university classroom or place of worship?

When a professor speaks from notes so skeletal that the resulting lecture cannot be viewed as a performance of a previously fixed work does the professor or the professor's employer have a common law copyright claim against the detailed note-taker who captures that output and then redistributes it in volume?

A pastor rises up in church one Sunday and delivers the sermon of his life, from notes that consist of a handful of words and dotted lines. A person in the church happens to be running a tape-recorder to capture the service for a sick friend and through a sequence of subsequent events not involving the pastor the sermon ends up on highly profitable compilation of great inspirational messages. The pastor may want a royalty for himself or his church, may be quite unhappy about the auspices of the recording or the juxtaposition of his sermon with others with which he strongly disagrees. Does the pastor have to preface his sermon with a reservation of rights or does the New York Court of Appeals suggest that in certain settings that may be unnecessary? (See ¶ 17 of the Hemingway decision.)?

3. Unfixed additions to a previously fixed speech

The Jackson case concerns a common hybrid. Jackson's speech was written out in advance of its delivery and distributed to the press. It appears, however, doesn't it, that he altered that speech using handwritten notes before he gave it. In all probability he deviated from the script as he spoke. What is the copyright status of those portions of the speech that were not written down? (See footnote 4 of the Jackson decision.)

4. The regretted interview

Jerry Falwell sought to assert copyright in statements he made to reporters from Penthouse magazine. His claim was rejected. The court noted that Falwell had no federal copyright claim since he was not reading from a prepared text or notes but was, instead, engaged in spontaneous conversation with the reporters. His common law copyright claim was rejected since his utterances did "not come within the narrow circumstances where a cause of action involving an oral expression can be sustained." The court observed that words spoken to the press are "destined expressly for dissemination to the public."

Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

Suppose the reporters had, with Falwell's permission, tape-recorded the conversation. (As, you will recall, may have been true of some of the conversations between Hemingway and Hotchner. It is not clear to me whether Hotchner tape-recorded some of the conversations or only his notes of them. See ¶ 2 of the Hemingway decision. ) Would Falwell have been able to enjoin the appearance of the article? Could Jesse Jackson, whatever his rights against MPI Home Video, have enjoined the Democratic National Committee from using clips of his speech in a highlights of the convention video distributed to party faithful or might it be said that words spoken at a national convention are "destined expressly" for such a use?